Land Registry Deeds (Escitura) - La Marina Urb

Hi Ian,

"My solicitor has informed me that.....", "the building work was completed in 2009 so the certificate of antiquity can be applied for next year."  Sorry, but that doesn't pass the "So what?" test.  Any vendor, along with their estate agent and lawyer, should ensure that their property is ready for sale.  If the property has been altered and/or extended without the correct licences granted at the time and the Cadastre (Land Registry) updated, it is the vendor's responsibility to correct that, not the buyers.

When we purchased our property, the vendors had built a first floor extension which, although having received formal Planning Permission from the Town Hall, had never been updated on the Land Registry.  I made it a condition of our purchase that the vendors correct the records, AT THEIR COST, before completion.  It cost them just over €1,000 to update the Cadastre, plus back-taxes for the increased IBI (Council Tax) over the preceding 4 years.

We had a similar situation when we sold my in-laws´ property, because they had enclosed an external staircase without Planning Permission.  A good, independent laywer (not one tied to the selling agent) should pick up these anomalies and they should not allow you to become responsible for the aggravation and cost of correcting the position.  I would recommend that you make it a condition of purchase that the vendors correct the records before completion and that they bear the costs for doing so.

Kind regards,

Kim 

Hi Kim,

Thank you for the information.

Your suggestion is exactly what I have asked my solicitor (independent) to do, with a clause in the proposed contract for the seller to be responsible for the updating of the documents at their cost.

I am also trying to protect my reservation deposit of 3000 euros so that if the 'works' cant be legalised for whatever reason I have my deposit refunded.  This is proving very difficult to get put in the contract as the sellers won't agree to this (perhaps I'm asking too much?)

I'm thinking that as long as I have in the contract that the 'works' are legalised at the sellers cost and to my solicitors conformity then I should be ok and only loose my euros if I pull out for an unrelated reason.

BUYER BEWARE is forefront of my mind.

Ian

Hi Ian,

When you say your "€3,000 deposit", are you talking about a sum that you've paid to the estate agent, rather than the contractually binding 10% deposit that is required by law?  If so, who is currently holding that money?  It's common practice for estate agents to take this so-called "Reservation Deposit" (which has no basis in Spanish conveyancing law) and often, if the sale falls through, the agents retain it to cover their costs, even though it should be the vendor paying their fee, not the buyer.

The vendor and his selling agent should not have marketed the property without it being ready for sale, so I would argue that they took the Reservation deposit without disclosing the full legal position of the property (or perhaps even deliberately concealing it?).  On that basis, if they can't legalise the alterations, they should return it.  I assume you wouldn't buy the property if it can't be legalised?  Fortunately, we didn't have that problem, because I refused to pay the Reservation deposit to the agent; instead, I told the vendors I would pay a REFUNDABLE deposit of the same amount to their lawyer, as an act of good faith, which they were happy with.

By the way, does the property have a current Habitation Certificate and Energy Performance Certificate?

Kind regards,

Kim

Hi Kim,

I haven't paid out anything as yet apart from a small amount to the solicitor for doing the background checks.

You would be correct in assuming I wouldn't buy a house without it being 100% legal.  That is why I have not rushed into paying anything.  If i hadn't employed the services of the independent solicitor I would not have known about the lack of legal documents (500 euros well spent I think).

It seems perfectly acceptable to ask for a fully refundable deposit until the property is fully legalised and to bypass the agent for any monies to be paid.

The agents particulars do not state any Energy Performance details.

No Habitation Certificate

No Registry of the extension works, pool or garden wall.

No Antiquity certificate 

All of these legal documents 'they say' are in the process, but the agents are gently pushing me towards paying a non-refundable reservation fee and then the balance of the 10% deposit within 5 days.

I wont be doing this without a clause in the contract stating as part of the contract all the legal documents would have to be in place by the completion date.

How did you know to contact the vendor directly?

Regards Ian

Technically, if you don't complete due to something on the sellers side such as a legal problem there is a decree in law that the seller must pay you twice the deposit. If you pull out due to a problem on your side you lose the deposit. Just double check this with your lawyer.

Hi SWC,

That's correct in respect of the legally binding 10% deposit, but not the so-called "reservation deposit", which is typically €3,000, or can be any amount the selling agent thinks they can get a buyer to pay 😉

Kind regards,

Kim

Hi Ian,

We viewed our property through an estate agent we had been using for other viewings, rather than the selling agent, and the owners were at the property.  They gave us their contact details, "in case you think of anything you didn't ask".  It was very helpful, as their agent did everything they could to frustrate the sale because we refused to pay them €3,000.  As I said previously, I eventually agreed to pay that amount to the lawyer, stipulating in the contract that it would be refundable should they fail to regularise the Land Registry details prior to completion.

As you haven't paid the dubious "reservation deposit", you're in a much stronger position.  If you don't proceed with purchase, the vendors' best hope is that they find an alternative, less rigorous purchaser who has a less than diligent lawyer that doesn't pick up the issues.  As your own lawyer has identified the missing/expired documents, I would make their provision by the vendor (including the EPC and Habitation Certificate), a contractual condition of sale.

Good luck!

Kind regards,

Kim

Thank you Kim.

Is it normal practice to have just one estate agent working for you and arrange viewings with other selling agents.  I don't want to be dealing with lots of different agents all with there own tactics to sell a house.

I seem to be getting good information from Barclays Properties on the Urb, where as the others I have spoke to seem hell bent on making paying money more important than finding the right house.

I am very happy with solicitors (L & A Solicitors) work and advice so far, so I will stick with them.

I feel much more relaxed and happy about the situation having opened this post.

Regards Ian

Hi Ian,

It's entirely up to you.  When we started looking, I made appointments to view properties with each listing agent, but some were so unprofessional that I ended up dealing with the just one agent.  She listened to what we were looking for and found us the property we eventually bought, even though it was listed with a different agent.  

There are a LOT of estate agents in this area and it's common practice for them to show each other's properties and split the commission on sales.  Potentially, the downside is that any agent is more likely to want to sell their own listings, so you could miss out on seeing everything that's available, but I spent hours trawling the two big Spanish property websites - www.kyero.com and www.idealista.com - and asked our preferred agent to arrange the viewings, even when they weren't her listings.

If you're happy dealing with Barclays then you could stick with them.  My in-laws lived on La Marina urbanisation for 18 years.  From personal experience of agents there, I would recommend NewStart, but steer clear of Zafira.

Kind regards, 

Kim